Case Comment

Saraswathi Bai v. Shripad Vasanji, AIR 1941 Bom 103

Submitted by:

Ashutosh Mishra

Division: C, PRN: 18010224182, Class of: 2018-2023

Symbiosis Law School, NOIDA

Symbiosis International (Deemed University), Pune.

In January, 2020

Under the guidance of

Ms. Deepali Sahoo (Assistant Professor)

Introduction
The claim by the father was made under section 25 of the Guardians and Wards Act1. This
section of the act provided the Court can return the custody of the minor to his father, who is
his natural guardian, if it is of opinion that to do so will be for the welfare of the minor ward.
The judges of the cases were Justice B.J. Wadia and then Chief Justice of Bombay High
Court John Beaumont2. The advocate for the appellant was Shri. K. M. Munshi and the
advocate for the respondent was Jamshedji Kanga. The appeal was filed in the year 1940 in
the Bombay High Court and the judgement was given in the year 1941. The laws applied by
the court were section 19(b) of the Guardians and Wards Act, VIII of 1890. But s. 19 section.
25 of the Guardians and Wards Act.

There are four major issues that arise from the facts of the case. They are:

 Whether the father shall be given the right to custody of the child because he is the
natural guardian under section 19 (b) of the Guardians and Wards Act, VIII of 1890?
 Whether the health of the mother can be reason for not getting the custody of the
child?
 Whether the interest of the child shall be preferred over the rights of the parents?
 Whether section of the of the Guardians and Wards Act, VIII of 1890 contradicts the
section 19 of the same act?

Background of the case

 The parents of the minor were married in February, 1936, and the minor, a boy, was
born in October, 1938.
 After the birth the mother unfortunately contracted tuberculosis, and she had to go
away for treatment, and the child was taken by the father and kept at his mother's
house.
 The mother of the minor was discharged from the sanatorium at the end of July, 1939,
but she was advised to remain at hill stations for a time in order to complete her cure,
and she came back to Bombay, considering herself to be cured, at the end of May,
1940.

1
1890
2
John William Fisher Beaumont was the Chief Justice of the Bombay High Court from 1930 to 1943.
  On May 29, the child was out with a servant in attendance, and was taken round to the
house of the mother and her parents, and it has been retained by the mother ever since.
The circumstances in which the child was taken by the mother are in dispute.
 The father says that it was virtually kidnapped by an uncle of the mother. The uncle,
however, has put in an affidavit denying that he kidnapped the child, and saying that it
was taken by the servant to the mother's house.
 As the servant, in charge of the child when it is alleged to have been kidnapped, has
not put in an affidavit, it is probable that the mother's story is true. However, that is
not very material. The fact is that from the end of May, 1940, the child has been in the
custody of the mother, and the father now asks to have it returned to him.

The court had to consider what was best for the interest of the minor3.

Analysis of the case

The C.J. Beaumont has given some points in his judgement around which we will analyse the
judgement. We shall also look into the judgement given by the Justice Wadia. Some of the
major points in the judgement of the Chief Justice were:

 If the natural mother is a suitable person, the Courts in England will as a general
rule hand over the custody of a child of tender years to the mother: Justice
Beaumont thinks that the law which is on the questions of such sort or based on such
lines is similar or identical to the law of England but he obviously thinks that the
social practices might be different. He also believes that it is almost impossible to find
a substitute which is at par with the natural mother. The position of mother is
considered as an important relation with the child in the modern times than the earlier
days. The judge also says that the right of the mother to the custody is recognised in
India and gives the example of the case law Bai Tar vs. Mohanlal 4. Although the C.J.5
thinks that the mother have adequate right on the child, he recognised that the rights
and interest of the child matters the most.

Human nature is much the same all the world over, and in my opinion if the mother is
a suitable person to take charge of the child, it is quite impossible to find an adequate
substitute for her for the custody of a child of tender years. The judge also thinks that
3
Section 17 of the of the Guardians and Wards Act, VIII of 1890
4
Bid Tara v. Mohanlal (1922) 24 BOMLR 779 
5
Chief Justice
 it is very unsuitable to find an adequate substitute for her in the tender years of the
child.

 On the evidence before the Court there is no reason for supposing that the health
of the child will suffer if its custody is handed over to the mother: The father of
the child claims that the mother was not well and it might affect the health of the
child. The plea is incorrect as the mother who suffered T.B., recovered a year and a
half ago. Hence the court does not get any reason from the evidence from the court to
suppose that the health of the child will suffer if the custody is given to the mother.
The court also said that the there is no question of removing the guardianship of the
father. He can apply to the Court at any time and if he thinks that the health of his
child is suffering, he can ask the Court to appoint a doctor to examine the child.

 There is no adequate substitute for the natural mother in this case: In C.J.’s
opinion, there is not the slightest doubt that the natural mother is the proper person to
have the custody of the child, and there is no evidence before the Court to justify us in
thinking that she is not a proper person to have that custody: Since the father has re-
married to a seventeen year old girl and he will likely not be able to take proper care
of the child (since he is not present in the house most of the times because of his job)
and the step-mother who is a seventeen year-old, the C.J. did not consider her as the
best substitute of her natural mother. The C. J. does not think that it will be apt to give
the custody of the child to the father under such circumstances.

Justice Wadia: Although Justice Wadia has acknowledged that the father is the natural
guardian in Hindu and as cited in the case of Besant v. Narayaniah6 and observed the section
19(b) of the Guardians and Wards Act, VIII of 1890 where the natural right of the father has
been received. but he has also agreed that the mother shall get the custody of the child as he
thinks the section 19 (b) of the act has been controlled section 17 of the same act, according
to which the paramount consideration is the welfare of the minor. The court after taking all
the circumstances into the consideration thinks that It is not the welfare of the father, nor the
welfare of the mother, that is the paramount consideration for the Court.and hence the court
ordered the custody of the child to the mother until further order

6
(1914) L.R. 41 I.A. 314, S.C. 15 Bom. L.R. 625, P.C
Conclusion

In the case, father of the minor has married again which in itself may not be a ground for
depriving him of the custody of his minor child but the Court has got to consider all the
circumstances of the case, and taking human nature as the same here as elsewhere, a step
mother cannot be expected to be very much interested in the welfare of a minor step-son, nor
likely to give him the attention, love and sympathy which the child naturally requires. It is not
the welfare of the father, nor the welfare of the mother, that is the paramount consideration
for the Court. It is the welfare of the minor and of the minor alone which is the paramount
consideration. The judgement also cited a line from the Bid Tara v. Mohanlal 7 which said,

“The boy is of tender age and I think that at present the personal care of the mother is a
paramount consideration.”

In that case the boy was seven years old. In this case the boy is just about two years of age,
and what was urged in Bid Tara v. Mohanlal can be applied with even greater force to the
case of a boy who is two years old.

Taking all these circumstances into consideration, I agree with the judges of the Bombay
High Court and think that at present the custody of the child should be with the mother but
that will not, as has been pointed out by the learned Chief Justice, prevent the father from
making a further application to the Court at any later date, under the liberty reserved to him to
apply, when he may be able to satisfy the Court that it will then be in the interest and for the
welfare of the minor child on account of the mother's health or the child's health, or on
account of want of means for maintenance, or on any other just and reasonable ground, that it
should leave the mother's custody and instead live with the father.

7
(1922) 24 BOMLR